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Dover attorney aids $14M civil suit

By Kate House-Layton
Delaware State News - Friday, June 23, 2006

WILMINGTON - A Dover lawyer last week helped win one of the largest workplace safety cases in Delaware history.

Barry Guerke of Parkowski, Guerke and Swayze in Dover, served as local counsel to Philadelphia attorney Mark LeWinter in a weeklong workplace safety trial in New Castle County Superior Court.

The jury awarded plaintiff Pablo Cesar Urena of New Jersey $14 million for permanent injuries he suffered in January 2003 during a Wilmington construction site accident.

Mr. Guerke said Mr. LeWinter was the lead attorney, while he provided Delaware practice and procedure knowledge in the case.

"He's a fine trial lawyer," Mr. LeWinter said about Mr. Guerke's role in the case.

Pennsylvania attorneys are permitted to try cases in Delaware if they have a local attorney act as co-counsel.

"As local counsel you have a very passive role," Mr. Guerke said.

The case was tried against Mun Seok Lee and Rising Sun Contractors, a subcontractor roofing company that Mr. Urena was working for when the accident occurred.

Mr. Urena was shingling roofs at a large residential development called the Preserve at Lafayette Homes when he fell, breaking his back in two places, fracturing his leg and dislocating his wrist.

His injuries also led to permanent loss of control over his bladder and bowels as well as some sexual function.

Mr. Urena's award compensated for his $185,000 medical expenses and loss of quality of life.

"The real case was whether Rising Sun was negligible," Mr. LeWinter said.

The federal Occupational Safety and Health Administration requires roofers to wear harnesses on the job site to keep them from falling, and for contractors to enforce the law.

The case found that the Rising Sun did not enforce the harness rule, allowing workers instead to use a board as a slide guard, which is not OSHA approved.

Mr. LeWinter said many of the workers were immigrants and were unaware of OSHA rules.

The faster they worked, the more money they made, so they had an incentive to work unencumbered.

Mr. Urena's $14 million jury award will be reduced to about $10 million, because he was found partially responsible for his fall. The worker had a harness in his truck, but didn't use it.

Mr. Guerke and Mr. LeWinter said they hoped one outcome of the case is stricter enforcement of safety rules.

"The reason we have OSHA is to protect workers from themselves," Mr. LeWinter said.

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